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Eighth Circuit: Forfeited Claim of Miscalculated Criminal History Score Is Reviewable Under Plain Error Standard

by Douglas Ankney

The U.S. Court of Appeals for the Eighth Circuit held that the forfeited claim of a miscalculated criminal-history score is reviewable for plain error.

Barthman pleaded guilty to one count of child pornography involving a prepubescent minor, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He was assigned six criminal-history points due to prior convictions in Minnesota for first- and second-degree criminal sexual conduct that were treated as crimes of violence under Sentencing Guideline § 4A1.1. This gave Barthman a criminal-history category of III. His total offense level was 32, making his Guidelines range 151-188 months. Barthman was sentenced to 151 months imprisonment and a lifetime of supervised release.

Barthman appealed, arguing that the district court committed procedural error when calculating his Guidelines range. He should have received three criminal-history points, not six, which would have given him a criminal-history category of II, not III, lowering his Guidelines range to 135-168 months.

The Court assumed, without deciding, that Barthman forfeited his claim because he did not bring the claim to the district court’s attention. Thus, the Court reviewed the claim for plain error. United States v. Campbell, 764 F.3d 874 (8th Cir. 2014). Plain-error review provides courts with a limited power to correct errors that were forfeited. United States v. Olano, 507 U.S. 725 (1993). The plain-error test has four prongs that must be satisfied: (1) there must be an error that was not intentionally abandoned, i.e., waived; (2) the error must be clear and not subject to reasonable dispute; (3) the error must have affected the appellant’s substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129 (2009). 

The Government conceded the error satisfied the first prong in that there was error. It also conceded that the third prong was satisfied. Barthman’s prior convictions could be considered a federal “crime of violence” only if the victim was under the age of 12. 18 U.S.C. § 2241(c). But the Minnesota statutes governing his conviction applied in cases where the victim was under 13. Minn. Stat. §§ 609.342-.343. When a state statute criminalizes more conduct than the federal definition of “crime of violence,” the state conviction does not count. United States v. Schneider, 905 F.3d 1088 (8th Cir. 2018).

But the Government argued the error was not “plain” under the second prong because Barthman did not bring notice to the district court that there was a flaw with the state statute or its breadth when compared to the federal statute. The Government also argued that the fourth prong was not satisfied because his federal sentence was shorter than the concurrent state sentence. That is, the error did not affect Barthman’s substantial rights.

The Court rejected the first argument because the plain-error standard assumes no objection was made in the district court. Henderson v. United States, 568 U.S. 266 (2013). An error is plain if at the time of appellate review it is obvious. Id.

As for the Government’s second argument: If a Guidelines error could result in a defendant being deprived of liberty unnecessarily, it particularly undermines the fairness, integrity, or public reputation of the judiciary proceedings. Rosales-Mireless v. United States, 138 S. Ct. 1897 (2018). At the time of Barthman’s federal appeal, the Supreme Court of Minnesota had granted his petition for discretionary review, increasing the likelihood that there was error in his state convictions that could reduce those sentences. Thus, his federal sentence could end up being longer than his state sentence. The Court concluded Barthman had satisfied all four prongs of the plain-error standard of review. 

Accordingly, the Court vacated and remanded for resentencing. See: United States v. Barthman, 919 F.3d 1118 (8th Cir. 2019). 

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